Gibbons v. Gentry

• Citation: 20 Mo. 468
• Parties: GIBBONS et al., Appellants, v. GENTRY, Respondent.
• Decision Date: 31 March 1855
• Court: Missouri Supreme Court

20 Mo. 468

GIBBONS et al., Appellants,

v.GENTRY, Respondent.

Supreme Court of Missouri.

March Term, 1855.

1. G. in Kentucky, in 1829, executed a deed for slaves to trustees to be held, with their increase, for the benefit of G. and wife during their lives, and after their deaths to be divided among their children. This deed was acknowledged and recorded. The certificate of acknowledgment ran in the name of J. B., clerk of the county court, but was signed at the foot “J. B., by J. J. A., deputy clerk.” G. remained in possession of the slaves, and shortly afterwards removed with them to Missouri, where he sold two of them to the defendant, who had notice of the deed, and the surviving trustee joined in the bill of sale. In a suit brought by the children of G. after the death of himself and wife, to recover the two slaves thus sold and their increase, Held,

1st. That the deed was not void upon its face under the laws of Kentucky in force when it was executed, and that the acknowledgment was sufficient.

2nd. That the legal title not being in the plaintiffs, the suit was not properly brought; that it should have been in the name of the trustees, or if they were dead, or refused to accept the trust, the petition should have been framed for the appointment of trustees, or for the execution of the trust without their intervention.

Appeal from Marion Circuit Court.

This action was brought in 1851 by the children of Isaac B. Gibbons, to recover upon the legal title, slaves claimed by them under a deed executed in Kentucky, in 1829, by their father, since deceased, under whom also the defendant claimed by purchase in Missouri, in 1831. The record showed the following facts:

On the 31st of July, 1829, Isaac B. Gibbons, then residing in Green county, Kentucky, executed a deed to Stanton Buckner, of Marion county, Missouri, and Richard A. Buckner, of Green county, Kentucky, for the slaves in controversy, and others, to be held by them in trust for the support and maintainance of the grantor and his wife during their lives, and the education of their children, and after their death to be divided among the children. This deed is set out at large in the opinion of the court, together with the certificate of acknowledgment and of record. It was acknowledged and recorded in Green county, Kentucky, September, 18, 1829, and in Marion county, Missouri, March 12, 1831. Gibbons remained in possession of the slaves after the execution of the deed, and in October or November of the same year, removed with them to Marion county, Missouri. The defendant offered evidence tending to show that Gibbons was largely indebted when he executed the deed; but there was other evidence tending to show that he paid all his debts in Kentucky, before removing to Missouri. It was in evidence that in July, 1829, Gibbons owned no other property of consequence than the slaves included in the deed. There was evidence tending to show that Richard A. Buckner, who died in 1848-9, in Kentucky, accepted the trust and acted under it; but that Stanton Buckner, the other trustee, who went to California, in 1850, had always refused to act.

After Gibbons removed to Missouri, he continued to remain in possession of the slaves, having but little other property. He contracted debts, judgments were recovered against him, and executions issued, which were levied upon some of the slaves. In March, 1831, he sold two of the slaves to the defendant, and with the price received paid off the executions and other debts contracted for the support and maintenance of his family before the Kentucky deed was recorded in Marion county. Before making the purchase, defendant heard of the Kentucky deed, and applied to Stanton Buckner for information, by whom he was told that the deed was of no effect, neither of the trustees having accepted the trust or acted under it, and Gibbons having always been in possession of the slaves. At the request of the defendant however, Stanton Buckner joined in the bill of sale, as did also Williams, the son-in-law of Gibbons, whose widow was one of the plaintiffs. The bill of sale to defendant was dated March 14, 1831, after the Kentucky deed was recorded in Marion county, but there was evidence that the purchase was made before that date. Gibbons afterwards removed to Arkansas, where he died in 1848, his wife having died some years prior to that date. This action was brought by his children to recover the two slaves sold to the defendant and their increase.

It was agreed that all the statutes of Kentucky bearing upon the questions in the case should be considered in evidence.

The Circuit Court refused all the instructions asked by the plaintiffs, and gave all asked by the defendant, including the following:

“If the jury believe from the evidence, that the defendant purchased the two slaves from Isaac B. Gibbons, in 1831, and paid said Gibbons, a fair price for said slaves, the deed under which the plaintiffs claim is void as to the defendant, and they ought to find a verdict for the defendant.”

The plaintiffs submitted to a non-suit and appealed to this court.

Glover & Richardson, (with Richmond), for appellants.

I. The deed of trust executed by Gibbons in 1829, was a valid deed, and vested in the trustees a remainder in the slaves to the use of the children of the grantor after the death of himself and wife. It was not void as immoral or contrary to public policy. (2 Kent. 352; 2 Black. 398; 3 Litt. [Ky.] 276; 7 Harr. & John. 257; 1 Humph. 273; 2 Yerg. 584; 9 Gill. & John. 77; 1 Florida, 86; 13 Ala. 738, 748; 2 Brevard, 38; Id. 411; 5 Humph. 393; 1 Rawle, 349.)

II. All the statutory provisions in force in Kentucky, necessary to the validity of the deed, were complied with. It was acknowledged within eight months after it was executed, and recorded. (1 Morehead & Brown's Dig. p. 738-9.)

III. The trust for the children was fully established by the deed, whether the trustees accepted it or not. A trust is never allowed to fail for want of a trustee.

IV. The deed was recorded in Marion county, Missouri, in due time; but it was not necessary that it should have been recorded there at all. The title once vested according to the laws of Kentucky, it could not afterwards be divested by way of forfeiture for non-compliance with further conditions. (13 Ala. 737, 742; 4 Humph. 211; Martin & Yerger. 102; 13 Pet. 106; 11 Mo. 556; Story on Conflict of Laws, p. 219, § 263.)

V. The statute of limitations is no bar to the plaintiffs' claim, because their right of action did not accrue until the death of their father and mother.

VI. It is said that this deed was void as a conveyance to the use of the grantor under the statutes 50 Edward III, ch. 6, and 3 Henry VII, ch. 4, which are alleged to have been enforced in Kentucky when it was executed. But those statutes were never construed to avoid any deeds except such as were made with a fraudulent intent. (2 Reeve's Eng. Law, p. 401; 4 Id. 140; Crabbe's Eng. Law, p. 440; 2 Kent, 440; Trevor v. Trevor, 1 P. W'ms, 621; Glanville v. Payne, 2 Atk. 39; 1 Eq. cases, abridged, top p. 39; Scroggs v. Scroggs, Ambler, 72; Harvey & wife v. Ashley, 3 Atk. 607; 2 Vernon, 702; Holloway v. Headington, 8 Simons, 324, (11 Eng. Ch. top p. 459;) 2 Vesey, jr. 331; 2 P. W'ms, 349; Davenport v. Bishop, 2 Younge & Coll. 451; 2 Mylne & Craig, 376; 2 Irish Eq. 113; Williams v. Williams, 15 Vesey, 419; 4 Brown P. C. 580; 1 Cox Ch. 215; 7 Hare, 318; Atherly on Settlements; Cowp. 432; 4 Kent. 349.) It may be that merely passive or nominal trusts might be held to be within these statutes, but not active trusts. (5 Iredell, 578; Id. 255; 1 Hill, (S. C.) 413; 1 Dev. Eq. 359; 1 Johns. Ch. 54; 11 Paige, 136; 1 Sandf. Ch. 104; 4 Paige, 354.) Even if the conveyance to the use of Gibbons during his life should be held void under these statutes, it does not follow that the interests of the remainder men must be held void also.

VII. The deputy clerk of the county court had power to do all that the principal could do.

The following Kentucky statutes were referred to by the appellants as those upon which they relied: 1 Morehead & Brown's Dig. p. 429, tit. “Conveyances,” top. p. 432; Ib. 437, 443, 612, 734 to 741; 2 Ib. tit. ““Slaves,” p. 1471 to 1480 inclusive; 1 Ib. 175, 411.

Pratt & Redd, for respondent.

I. The deed under which plaintiffs claim, being a voluntary deed, was as the law stood prior to the Kentucky statute of frauds, absolutely and per se void as to a subsequent purchaser for value, with or without notice. (2 Taunt. 82; 2 Black. 1021; 1 Boss. & Pull. 334; 2 Vesey, sr. 10; 1 Atk. 94, side p.; 18 Vesey, jr. 89; Ib. 111; 1 Cowper, 280.)

II. The law stood thus until the passage of the statute of frauds of 1798, (Littell & Swigert's Dig. p. 618,) and the 41st section of the act concerning ““Slaves,” (Littell & Swigert's Dig. 1158; 2 Morehead & Brown's Dig. 1479-80,) by which a voluntary deed might be shown to be good, by proof that it was legally acknowledged or proved and recorded within eight months. This deed was not legally acknowledged or proved. There was no law in force in Kentucky in 1829 which authorized a deputy clerk to take the proof of deeds.

III. The plaintiffs can claim no title to these slaves under the deed of their father, for the following reasons: 1. They were disposed of by the grantor during his life for the support of himself and the plaintiffs, his children, and the deed can only take effect as to such as remained undisposed of at his death. 2. It was a conveyance to the use of the grantor who was largely in debt at the time. The statute, 3 Henry VII, ch. 4, was in force in Kentucky at the date of the deed. 3. Admitting that the deed gives the plaintiffs an equity in the slaves, and that they might file a bill to enforce the trust, yet they cannot recover in this action, in which they sue for the possession. By the terms of the deed, the trustees alone were entitled to the possession.

RYLAND, Judge, delivered the opinion of ...